DocketNumber: Appeal, 34 C.D. 1985
Judges: MacPhail, Colins, Kalish, Doyle
Filed Date: 3/21/1986
Status: Precedential
Modified Date: 10/19/2024
Opinion by
Frank B. Bellosi and Sandy J. Bellosi (Appellants) appeal from an order of the Court of Common Pleas of Delaware County which affirmed the decision of the Zoning Hearing Board of Clifton Heights (Board) to grant John Cacciolas (Applicant) request for a variance. We will reverse.
The Board, after a hearing, denied the variance on the basis that the property could be used in its present condition and that Applicant would not suffer undue hardship if the variance was not granted. On Applicants appeal, the court remanded the case to the Board for “further consideration”.
Appellants, who live next door to the grocery store, appealed the August 11, 1983 decision to the court. That court remanded the case to the Board for a “clarification of the August 11, 1983 order” and directed the Board to state their findings of fact and conclusions
Applicant proposed to expand his store business by reducing the side yard set back and the number of required parking spaces and by increasing the total area to be covered by the building.
In order to obtain a variance, Applicant must establish that (1) the ordinance imposes an unnecessary hardship on the property; (2) the hardship results from the unique physical characteristics of the property; (3) granting the variance would not have an adverse impact on the health, safety and welfare of the general public;. (4) the hardship is not self-inflicted; and (5) the variance sought is the minimum that, will afford relief. Section 912 of the MPC; Hamilton v. Zoning Hearing Board of Whitemarsh Township, 57 Pa. Commonwealth Ct. 451, 426 A.2d 1309 (1981).
The applicant in Jenkintown operated a valid nonconforming vehicle towing and repair business and
In discussing the hardship requirement, Judge Craig observed that the non-expansion of a nonconforming use is not in and of itself sufficient to constitute a hardship, Id. at 192, 446 A.2d at 720, and that “our analysis ... requires a finding that, in the face of ordinance restrictions, the expansion or modernization ... must be a matter of necessity for the business rather than merely to take advantage of an increase in business.” Id. at 199, 446 A.2d at. 724. (Emphasis added.)
The common pleas court here found that Applicant offered substantial evidence to establish that there is a need to expand the store since Applicant’s business had increased by 45% in the past four years. The court was of the opinion that the “increase in business translates into a heed for more space for customers, items for sale, storage and most importantly, a 15x20 foot walk-in freezer to handle the meat sold.” Bellosi v. Zoning Hearing Board, of Clifton Heights Borough (No. 83-9966, filed November 28, 1984), slip op. at 4-5 (emphasis added). The court concluded that “[h]ere the unnecessary hardship imposed is the feet that the volume of business has increased necessitating this expansion to accommodate customers and to provide more variety and service in an effort to keep the business competitive and viable.” Id., slip op. at 7.
Order
The order of the Court of Common Pleas of Delaware County, at No; 83-9966, dated November 28, 1984, is reversed.
The trial court affirmed a decision of the Board granting ' Applicants application for a non-conforming use based upon the fact that the use pre-dated the zoning ordinance.
The trial courts order is not found in the record before us; neither has the trial court supplied us with the relevant docket entries as required by Pa. R.A.P. 2153. The briefs of counsel and. the trial courts opinion now before us, however, indicate that there was such a remand order.
The conditions were:
1. The addition to be added will be three feet off the property line for its full extension.
2. The front door will be moved from Berkley Avenue to Cherry Street.
3. There will be no cooking on the premises except for the personal on premises consumption of the applicant.
4. The rain downspout will be relocated so as not to spill onto neighbors property.
*86 5. Applicant will use his best efforts to notify patrons not to park in front of neighbors’ driveways,
6. Applicant will enclose his trash containers by a fence or some other means.
7. The request for the apartments is withdrawn.
8. Applicant will comply with all Borough building, safety and fire codes and ordinances.
The Board’s findings of feet and conclusions of law were stated as follows:
Findings of Fact
1. That the property in question is a retail grocery store, and has been used as such for at least 25 years.
2. That the property is zoned R.-2.
3. That under the Code a variance would be required becuase [sic] of the percentage of lot coverage, the side yard requirements, and parking requirements.
Conclusions of Law
1. The Board has jurisdiction over the subject matter and the application here in question.
2. The Public was duly notified.
3. This is a re-hearing ordered by the Court of Common Pleas of Delaware County, Pennsylvania.
4. The property can not be used in its present use.
5. The applicant would suffer undue hardship if the variance were not granted.
Mr. Connell, the surviving member. of the original Board, ' testified as follows: .
*87 All I can say is after sitting for four hours and listening to testimony that night from everybody in the neighborhood, the community itself, and the facts that they pre-' sented — some of the facts being the store was a grocery for approximately 25 years at least. That’s my understanding. I’m not really sure about that — in my opinion the store wasn’t large enough, and I based that on the owner’s testimony and people’s in the neighborhood opinions. The store serves the community and especially senior citizens,
The back of the store at this point in time to me is an eyesore. Also in testimony the Chief of Police, Mr. Berry, stated that the area is already a traffic hazard and loss of additional parking due to this addition wouldn’t create any additional burden as for as he was concerned.
In 1982 Mr. Cacciola requested a permit which also included two apartments and most of the people objected to this, and at that time I objected to that because I wasn’t really — just that particular presentation wasn’t my idea to vote yes to. But after they went through the apartments and came with their presentation differently it just seemed to me that that was the time to vote yes. That’s why I did it.
That is all I have to say at this time.
(Hearing before the Board dated July 19, 1984, at 11-12.)
The addition would provide extra storage, a walk-in freezer and customer space necessary, according to Applicant, for the store to survive economically. •